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What’s a Libertarian To Root For Now?

I appreciate the invitation to participate in this lively debate. Will Wilkinson, the managing editor, has posed a final set of questions that are worth addressing:

Assuming that no transition to ordered anarchy is within reach, what should classical liberal attitudes be toward the status quo? If we’re not going to get a minimal state, or ordered anarchy, should we fight for one kind of big government over other kinds? That is, does liberty do better under certain kinds of “bigness”? Or is our time better spent loudly pointing out the illegitimacy of what much of the government does?

The exchange between Jerry Gaus and Michael Munger on the merits of democracy provides a useful entry point. While Michael seems to be knocking the merits of democracy, Jerry chides him for longing for a Golden Age of Liberty in a past that is rife with nondemocratic oppression. I think both are right.

The principal reason to question democracy is to undercut the facile claim that majoritarian rule is the only or most legitimate form of rule. To the contrary, as I noted in my original post, curbing abuses of power by majority factions was a very serious problem that led to the replacement of the Articles of Confederation by the Constitution. The Founders’ attempted solution was a new form of “republican” government by which the majority would not rule directly, but would have the means of checking abuses of power by those few in the government who actually do rule. So the legislative branch included a majoritarian House of Representatives, the judicial branch included a right to a jury composed of members of the community, and the electors who were to select the president were themselves chosen by voters. For better or worse, in the twentieth century we have moved away from this republican form of limited government towards a more “democratic” or majoritarian form of government with fewer structural limits on legislative power.

But majoritarianism is not a solution to the question of legitimate rule; it remains a problem to be solved. As political philosopher Jeffrey Reiman explained his article, “The Constitution, Rights, and the Conditions of Legitimacy,” in Alan S. Rosenbaum (ed.), Constitutionalism: The Philosophical Dimension (New York: Greenwood Press, 1988):

there is nothing inherently legitimating about the electoral process. If anything, the electoral process is the problem, not the solution… . [T]he policies that emerge from the electoral process will be imposed on the dissenting minority against its wishes. And then, rather than answering the question of legitimacy, this will raise the question with respect to those dissenters. Why are the exercises of power approved by the majority against the wishes of (and potentially prohibiting the desired actions of) the minority obligatory with respect to the minority? Why are such exercises of power not simply a matter of the majority tyrannizing the minority?

Reiman then identifies a potential answer to this challenge:

These questions not only point up the error of taking electoral accountability as an independent source of legitimacy, they also suggest that it is mistaken to think of electoral accountability and constitutional provisions as alternative sources of legitimacy. Rather, the Constitution with its provisions limiting the majority’s ability to exercise power is the answer to the question of why decisions voted by a majority are binding on the minority who disagree. (Emphasis added)

And we must also never forget that a legislature is a mere handful of persons, who only metaphorically — and usually fictitiously — speak for “the majority.”

So, I would offer this partial answer to Will’s questions: within the framework of the status quo, libertarians should favor the rigorous enforcement of the checks on legislative power that are already contained in the Constitution. This means favoring a robust form of judicial review of the constitutionality of legislation unbowed by charges of “judicial activism” by “unelected judges” thwarting the “will of the majority.” Thwarting the will of a handful of legislators when they intrude upon the liberties of the majority, the minority, or merely a single individual person is not a bug, it is a feature of our republican Constitution.

My book, Restoring the Lost Constitution: The Presumption of Liberty was intended to provide an accessible description of these constraints, along with a practical means of putting them into effect: Adopting a “Presumption of Liberty” by which the government would have to justify its restrictions on individual liberty as both necessary and proper.

This is not the place to describe exactly how this proposal would work, but suffice it to say it would protect all liberties in much the same way as the freedom of speech is now protected. Wrongful speech (e.g. fraud, defamation) can be constitutionally prohibited; and rightful speech in public places can be regulated by what are now called “time, place and manner” regulations, provided these regulations are scrutinized to ensure that they are not pretexts for the suppression of liberty rather than a means of facilitating its orderly exercise. So too it should be with respect to all individual liberty: the government may properly prohibit wrongful acts and regulate rightful ones, provided its regulations are not pretexts for suppressing the rightful choices of individuals with whom a majority or minority may disagree.

Of course, these constraints on the power of legislatures need not be limited to courts. Presidents and governors should veto legislation that exceeds the constitutional limits on legislative power. In states that allow it, popular initiatives can check legislatures (within constitutional limits). And legislators themselves should take seriously the limits on their own power, though they tend to do this only when they think the other branches are looking over their shoulder and NOT when they think they are exercising complete discretion.

And guess where this puts libertarians? Smack dab in the mainstream of the American people who love their Constitution, even if they are not completely aware of what it says. The same American people who were appalled when Robert Bork compared the Ninth Amendment to an inkblot on the Constitution. So in that spirit, let me close my contribution with these passages of the Constitution as my final answer to what libertarians should be rooting for:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. [Article I, Section 1]

And:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [Ninth Amendment]

And:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. [Tenth Amendment]

But:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Fourteenth Amendment]

Adhering to these precepts is not only a good idea; it’s THE LAW!

Also from this issue

Lead Essay

Reprising the topic of his 1989 essay, “Is Limited Government Possible?” political theorist Anthony de Jasay continues to express limited skepticism. According to de Jasay, the incentive of political actors is to gain power by putting together winning coalitions, and to stay in power by rewarding their supporters at the expense of their opponents. If constitutional limits stand in their way, they will eventually be reinterpreted, undermined, or otherwise worked around. Governments are more delayed than limited by constitutional rules, like a lady with the key to her own chastity belt. If governments are effectively limited, de Jasay argues, then it is by means of the structure of campaign finance, the practical limits on tax rates, and public panic at the prospect of economic ruin. De Jasay admits conventional cultural and moral norms may limit government, but doubts these are strong enough to fully check the interests that drive politics.

Response Essays

In his reply essay, Gerald Gaus, the James E. Rogers Professor of Philosophy at the University of Arizona, argues that Anthony de Jasay has overlooked the importance of distinctively moral rules in regulating behavior. Drawing on recent work in psychology, Gaus distinguishes between conventional rules, which may be changed by the relevant authority without complaint, and moral rules, which may not. If constitutional limits on government fail, it is because these are seen as merely conventional rules out of sync with biologically and culturally evolved moral rules. “The welfare state reigns supreme not because the state and it allies have tricked the rest of us in a power grab,” Gaus argues. “It reigns supreme because in the eyes of most citizens it conforms to the egalitarian fairness norms that have evolved with humans.”

In his reply, Duke University political scientist Michael Munger agrees with de Jasay’s discussion of “the frontier between the ‘zones’ of individual and collective choice,” and provides a novel illustration. However, Munger disagrees that the problem with the “incentive-compatibility” of limits on power has been overlooked. He offers a classic historical example of incentive-compatible constraints and discusses the value of building conflicts of interest into political institutions through the separation of powers. “The last thing you want is an efficient government. Our only choices are a truly weak, but efficient, limited government, or else a powerful government prevented by strong ties from using most of its powers, most of the time.”

Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center, notes that limited government is possible because it is actual, but acknowledges that “given that some limits on power clearly remain, these constraints failed to hold the line the Framers were attempting to draw.” Barnett argues that the mechanisms of limited power embodied in the Constitution — reciprocity, checks and balances, and the power of exit — would be more successfully realized in a “polycentric constitutional order in which one would subscribe to a legal system of one’s choice as today one subscribes to cell phone service, health and auto insurance, or private security providers.” Understanding why this would be an improvement “can help us appreciate why restoring the characteristics of the original Constitution as amended by the Fourteenth Amendment … would be far preferable to the constitutional status quo,” Barnett writes.

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